Elizabeth Sheehy is professor of law at the University of Ottawa. Teresa Scassa is the Canada Research Chair in information law at the University of Ottawa.
The Globe and Mail's investigative series Unfounded offers an unprecedented opportunity for change at the level of police investigations of sexual assault. The journalism reveals the breadth and depth of the problem, and makes clear to ordinary Canadians that practices of unfounding not only cause tremendous harm to thousands of women who report, but also leave the rest of us endangered by predators who remain insulated from accountability for their crimes.
At the same time, this is a dangerous moment. At least 32 police departments across the country have committed to reviewing their data, but the overwhelming majority are focused on internal reviews – not reviews that render their practices transparent, accountable and open to long-term and sustainable change.
What is so bad, one might reasonably ask, about internal review? Isn't it better than nothing? Internal review allows police departments to characterize the problem as simply one of data mismanagement. They re-classify cases previously in the "unfounded" box to "insufficient evidence to proceed." While the new label might alleviate distress for women who report rape, it will effectively immunize police from external scrutiny, allowing them to avoid critical questions about whether professional and thorough investigations are conducted and how women are interviewed and informed about police decisions. Police can diffuse any pressure to improve the very low charge rate for sexual assault by asserting that the problem is resolved.
Only the Philadelphia model, tried and tested over years to the praise of both police and women's advocates, holds the potential for real and sustainable change. It requires long-term partnership between police and advocates for women who have experienced violence. Together, they regularly review all unfounded files and a random sample of files otherwise closed so that experts can ask questions and identify investigative failures or the distorting influence of myths and stereotypes. When done on a timely basis, police have the opportunity to re-open files, complete investigations and lay charges.
Both police and advocates benefit from learning from each other's expertise. The model has produced dramatic results in Philadelphia and other U.S. cities: lower unfounding rates, more sophisticated investigations, higher charge rates, better prepared prosecutors and increased public confidence in police. That is why it is commonly referred to as the "gold standard" for sexual assault investigations.
To succeed, the Philadelphia model depends on the participation of front-line advocates who are completely independent of police and knowledgeable about local conditions and challenges, expert in violence against women, accountable to their own organizations for their work and bound by confidentiality oaths that meet or exceed those imposed on police. They must have access to the complete files – nothing redacted – or they will be unable to provide authoritative feedback and police will always be able to rely on superior yet undisclosed "information" to justify their decisions.
Police across Canada argue that privacy laws prevent the adoption of the Philadelphia model. But is this a valid concern? While privacy laws do prevent government actors from disclosing personal information through Access to Information requests, the Philadelphia model does not rely on access to information. Participants in the review of files would have the status of consultants and would be bound by confidentiality agreements. These would be in accordance with standard practices already in place for outside consultants. Privacy is a crucial value, but it is not compromised in the Philadelphia model. It should not be used as a red herring to deflect transparency and oversight.
As the Unfounded series clearly demonstrates, such transparency and oversight are sorely needed. Canadians too deserve the "gold standard" for sexual assault investigations.